| People v Walker |
| 2015 NY Slip Op 01344 [125 AD3d 1507] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGordie W. Walker, Jr., Appellant. |
Williams, Heinl, Moody & Buschman, P.C., Auburn (Ryan James Muldoon ofcounsel), for defendant-appellant.
Gordie W. Walker, Jr., defendant-appellant pro se.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered August 1, 2013. The judgment convicted defendant, upon a jury verdict, ofburglary in the second degree and criminal possession of stolen property in the fifthdegree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofburglary in the second degree (Penal Law § 140.25 [2]) and criminalpossession of stolen property in the fifth degree (§ 165.40), defendantcontends that the evidence is legally insufficient to support his conviction. Defendant'scontention is unpreserved for our review inasmuch as he failed to renew his motion for atrial order of dismissal after presenting evidence (see People v Hines, 97 NY2d56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, that contention iswithout merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Therecord establishes that defendant attended a party at the victim's apartment, that he wasthe last person to leave the party, and that he was alone in the apartment in the hoursbefore the victim discovered that his property had been stolen. Further, the day after theparty, defendant sold the property stolen from the victim. We thus conclude that"[d]efendant's recent and exclusive possession of the property that constituted the fruitsof the burglary, and the absence of credible evidence that the crime was committed bysomeone else, justified the inference that defendant committed the burglary" andknowingly possessed stolen property (People v Marshall, 198 AD2d 907, 907[1993], lv denied 82 NY2d 898 [1993]; see People v Jackson, 66 AD3d 1415, 1416 [2009]; People v Scurlock, 33 AD3d366, 366 [2006], lv denied 7 NY3d 928 [2006]). Viewing the evidence inlight of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we likewise conclude that the verdict is not against theweight of the evidence (see Bleakley, 69 NY2d at 495). We note that"[r]esolution of issues of credibility, as well as the weight to be accorded to the evidencepresented, are primarily questions to be determined by the jury" (People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]), and we see no reason to disturb the jury's resolution of those issues inthis case.
Contrary to the contention of defendant in his pro se supplemental brief, we concludethat County Court properly granted the People's motion to amend the indictment toconform to the proof at trial inasmuch as "[t]he minor temporal correction did not changethe theory of the prosecution or cause any prejudice to . . . defendant"(People v Hankins, 265 AD2d 572, 572 [1999], lv denied 94 NY2d 880[2000]; see CPL 200.70 [1]; People v Lane, 47 AD3d 1125, 1127 [2008], lvdenied 10 NY3d 866 [2008]; People v Grasso, 237 AD2d 741, 742 [1997],lv denied 89 NY2d 1035 [1997]). Present—Peradotto, J.P., Carni, Sconiersand Whalen, JJ.